ICC Gives Itself Authority to Adjudicate Israeli “War Crimes:” What It Means (with Radio Interview)

In addition to publishing the following article, HonestReporting was featured on Kan, Israel’s national radio station.

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Last Friday the International Criminal Court (also referred to as “the Hague”) announced its decision to exercise jurisdiction over Israel and within “Palestine” for the purpose of prosecuting Israel for alleged war crimes. Despite the legalistic sounding name of the “court” it actually functions as a political body: in this case a body that on Friday granted itself the authority to bring politically driven prosecutions against any country in the world, whether or not that country has agreed to be a part of the ICC’s activities. This prosecution will set a dangerous precedent not only for the Jewish state, its leaders, soldiers and private citizens, but also for citizens of all nations that may potentially become the next victims of this growing international populism. Friday’s decision may change the very nature of international law in a manner that stands to harm our growth as a global community.

What actually happened?

ICC prosecutor Fatou Bensouda has indicated that she intends to prosecute Israel for war crimes related to the existence of Israeli communities outside of the “Green Line” (ie: “settlements”), Israel’s conduct during the 2014 war in Gaza, and Israel’s conduct with respect to violent Palestinian rioters (sometimes incorrectly referred to as “protesters”) along the Gaza border. We addressed the underlying claims last year in this article.

However, until Friday Bensouda faced a specific hurdle: it is not at all clear that the ICC can exercise jurisdiction in these matters at all. For one thing, Israel is not a signatory to the Rome Statute, the document that formed the ICC.  For another, the entity referred to by the ICC as “Palestine” has not clearly established statehood or territorial borders, thus it isn’t clear whether Palestine could sue Israel at the ICC. And finally, the Oslo Accords in themselves form a body of controlling law that supersedes the Rome Statute in this matter.

For these reasons, prosecutor Bensouda brought the question to a tribunal of three ICC judges to determine whether the ICC can exercise jurisdiction. The panel ruled 2-1 in favor of jurisdiction, with a strong dissenting opinion written by judge Judge Péter Kovács’.

Is the ICC right?

The dissenting opinion written by Judge Kovács’ makes a detailed and compelling legal case as to why the ICC’s decision is mistaken, covering topics from the fine points of the Rome Statute itself, to the non-legal nature of UN resolutions, the legal meaning of “national territory” and of the “State of Palestine,” and more. HonestReporting readers who are “legally inclined” should certainly consider reading the 163 page document at the above link.

However, now that the decision is made, it is important to consider the wider question: does the ICC have the right to make such a decision at all, and what will be the consequences for Israel, for the United States and for the nations of the world?

What is “international law”?

As discussed many times by HonestReporting, international “law” is not a compilation of legislation in the classical sense but, rather, a collection of treaties according to which sovereign states have agreed to abide. In this case, the relevant treaty is the Rome Statute. However, Israel has never agreed to abide by this statute. Nor has the United States, for that matter. This means that in Friday’s ruling, the ICC has “given” itself the power to exercise authority over any sovereign nation, a notion that violates the very nature of international law itself.

To put it differently, when nations agree to a treaty, that agreement can and should be enforced by bodies that the various nations have nominated for that purpose. However in this case, the ICC has determined that it is acceptable to impose a treaty even on countries that have never agreed to it.

The case in favor of jurisdiction

The argument in favor of jurisdiction is (in short) that “Palestine” is a signatory to the Rome Statute, and the events in question occurred within Palestine’s sovereign territory, therefore regardless of who committed those acts, the ICC should be able to exercise jurisdiction at Palestine’s request.

Judge Kovács’ dissent goes into detail about the underlying concepts including whether Palestine is a state, or has sovereign territory.  However the broader question runs deeper: even if the exercise of the ICC’s authority fits the body’s own rules, can it apply those rules to a country that has never agreed to be bound by them?

The United States says: no.

The American Reaction

Last October, the Trump administration authorized sanctions against employees of the ICC, due in major part to prosecutor Bensouda’s attempts to prosecute Americans for alleged war crimes, even though the United States, like Israel, is not a signatory to the Rome Statute.  The United States took much criticism for its methods, and a federal court has since blocked the measure.

However, on Friday, the U.S. State Department under the Biden administration echoed the same underlying US position as the Trump administration, saying (emphasis added):

As we made clear when the Palestinians purported to join the Rome Statute in 2015, we do not believe the Palestinians qualify as a sovereign state, and therefore are not qualified to obtain membership as a state, or participate as a state in international organizations, entities, or conferences, including the ICC.

We have serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel. The United States has always taken the position that the court’s jurisdiction should be reserved for countries that consent to it, or that are referred by the UN Security Council.”

One thing is clear: this is not a Republican or Democrat position, but rather an American position.

Law vs. Morality

Legalisms aside, we also have to consider what is morally right. International law grew up in the wake of the horrors of World War II. Is it right to live in a world in which a country may act with impunity simply by refusing to sign a treaty?

Of course not.

And that is not the case here.  Resolutions passed under Chapter 7 of the United Nations Charter have the force of international law and are binding even on nations that are not UN member states, exactly the point alluded to by the American State Department’s statement on Friday.  This is the very mechanism that led to the international invasion of Iraq in 1991. Furthermore, the Oslo accords themselves create a body of law that is binding on Israel in this situation.

Therefore, the question is not whether nations should be held accountable, but whether the ICC may appoint itself an ultimate international authority when other mechanisms are available. From this point of view, the ICC’s decision on Friday is not only improper, but also unnecessary and immoral.

Why does it matter?

The ICC is empowered to issue an international arrest warrant, which can be enforced by any nations willing to cooperate. The ICC may then impose punishments including lengthy prison terms. ICC punishments can be applied to national leaders, soldiers, and even civilians. Thus, Israel could potentially find its national leaders unable to travel abroad, its citizens being arrested in countries throughout the world, and even young soldiers being tried and imprisoned at the Hague. The present approach of prosecutor Bensouda realistically points to an outcome in which any Israeli civilian living in a “settlement” or any Israeli soldier who ever guarded a checkpoint would be defined as a “war criminal,” arrested upon leaving Israeli territory, and imprisoned for decades. It is not for certain that this extreme outcome would necessarily come to pass, however according to the specific phrasing of the Rome Statute, it is absolutely possible.

The International Criminal Court is not a “court”

The words “International Criminal Court” are seductively misleading: they give the impression that the ICC is a body that interprets legislative law. It is not.  Certainly, in theory, the ICC is supposed to perform like a court. In practice, however, it functions as political body that carries out decisions based on the interests of its members.

Case in point: prosecutor Fatou Bensouda came to the ICC after her tenure as Minister of Justice of Gambia, where she presided over and enforced the country’s laws and practices in favor of torture, arbitrary arrest, legal rape, sex trafficking and female genital mutilation.  Despite a 2018 US State Department report detailing these practices, and despite the fact that Gambia is a signatory to the Rome Statute, prosecutor Bensouda has not seen fit to prosecute the leadership of her homeland, including herself.

Other parties who have never been prosecuted at the Hague include leaders of Syria who are responsible for the largest loss of human life in recent history, Turkey, which in the last decades murdered thousands of Kurds; China, which is holding millions of Muslims in “reeducation” camps; Iran, which is behind the war crimes being perpetrated in Yemen, and many more.

The sheer number of human lives that might have been saved by a proper application of the ICC’s mission is in the millions.  Instead,  the ICC, an unelected, undemocratic political body is attempting to apply unchecked global power based on political agenda. This stands to injure global trust in international institutions and the very nature of international law, thus posing serious and long-term harm to our world’s growth as a cooperative global community.